Last week I walked you through one move — the Shakil play, where a self-insured employer paid medical bills, filed paperwork that literally said “With Liability,” and then five months later controverted the whole claim for the price of a $300 penalty. That was one play from a much bigger playbook. This week, the map.
If you’re an injured worker in New York and you’ve just filed a workers’ compensation claim, you are about to be on the receiving end of tactics the defense has been refining for decades. The plays are repetitive. They’re predictable. They work because the carrier and its lawyers run them every day across hundreds of claims, while you encounter them once, in the worst week of your year. That asymmetry is the whole reason the defense wins fights it shouldn’t.
This issue isn’t a case note. It’s a field guide. Seven plays, each with a name, a description, what it looks like when it’s happening to you, and what to do about it. In the weeks ahead, when we break down a recent decision, I’ll point back to this issue and say “this is Play #3 in action.” Once you can name the move, you can see it coming. That’s the entire goal.
If you want the long-form explanation of how the New York system actually works in the first place, start here. Otherwise, let’s get into it.
Play #1: The Medical-Only Acceptance
What it is. The carrier pays your medical bills but refuses to pay you wage replacement benefits. They never formally accept the claim. They never formally deny it. You sit in a holding pattern they control.
Why it works. Most injured workers — and a surprising number of lawyers — assume that if the carrier is paying the doctor, the claim is accepted. It isn’t. Under the EDI filing system, an employer can file a First Report of Injury, pay medical-only under Workers’ Compensation Law § 21-a “without prejudice,” and reserve every defense for later. The check the doctor cashes is not an admission.
What it looks like to you. Your bills get paid. Your paycheck doesn’t. Nobody calls. Nobody fights you. Weeks become months and you’re burning through savings.
The counter. Don’t wait for the carrier to do anything, because their entire strategy is doing nothing. Under § 25(2)(a), if you’re disabled, not working, and have medical evidence connecting your injury to your job, you can request a hearing to be held within 45 days. Most workers don’t know this provision exists. Use it. If your benefits were denied or never started, the Denial Analyzer will help you figure out what kind of denial — or non-denial — you’re actually dealing with.
Play #2: The IME Shopping Trip
What it is. The Independent Medical Examination. The word “Independent” is doing more work than any word in the English language. The carrier picks the doctor, pays the doctor, sends the doctor a packet of materials curated by the carrier, and then uses the doctor’s report to either (a) deny that your injury is related to your work, (b) declare you at maximum medical improvement and shut off your benefits, or (c) say you’re ready to return to full duty regardless of what your treating physician says.
Why it works. IME doctors who consistently find in favor of the carrier get hired again. IME doctors who find in favor of claimants don’t. The market sorts itself.
What it looks like to you. A letter scheduling you for an exam at an office you’ve never heard of, sometimes far from where you live. A fifteen-minute appointment with a doctor who barely speaks to you. A multi-page report a month later that doesn’t sound like the visit you remember.
The counter. Bring someone with you. Time the exam. Write down what was tested, what wasn’t, and what was said. When the report shows up, compare it to your memory in detail. If you want a structured walkthrough of what to flag, run the report through the IME Red Flag Checker. For a plain-English explanation of what an IME is and what’s coming at you, this FAQ is the briefing I wish every injured worker got before their first exam.
Play #3: The Slow-Walk Controvert
What it is. Under § 25(2)(b), a New York carrier has 25 days to file a notice of controversy after the Workers’ Compensation Board indexes the claim — or they’re barred from contesting key elements like employment status and whether the injury arose out of work. That’s a real deadline with real teeth. But the clock only starts running when the Board indexes the case, and under 12 NYCRR 300.37(c)(1), if the employer or carrier files something first, the Board doesn’t index. So the 25 days never starts. The case drifts. You drift with it.
Why it works. The system was designed assuming the Board would index quickly. The exceptions to indexing have swallowed the rule.
What it looks like to you. Silence. No decision. No hearing date. No checks. No explanation.
The counter. Force indexing. Submit the C-3 (claimant’s notice), a medical report, and a medical authorization together. Under 12 NYCRR 300.37(b)(1), once those three documents are in, the Board has to index within five business days. That starts the 25-day clock and brings the carrier to a decision point. If you’re already in a slow-walk and you want a baseline read on what your case is worth before deciding how hard to push, the Case Evaluator is a starting point.
Play #4: The Apportionment Chip-Away
What it is. You hurt your back lifting a box at work. The carrier subpoenas your old medical records and discovers you had a back strain in 2014 that resolved in three weeks. Now they argue that some percentage — 25%, 40%, 60% — of your current disability is attributable to that old injury rather than this one. Every percentage point they shave off is a percentage point of your wage benefit and your eventual schedule loss of use award they don’t have to pay.
Why it works. MRIs of human spines show degenerative changes in almost everyone over 35. The IME doctor will find them. The carrier will argue them.
What it looks like to you. A line in the IME report that says “claimant has pre-existing degenerative disc disease” or “prior history of lumbar injury.” That’s the setup. The actual play comes at permanency, when the carrier asks the law judge to reduce the award.
The counter. Under settled New York case law, apportionment doesn’t apply when the claimant was asymptomatic and working full duty at the time of the new injury — even if there are degenerative findings on imaging. The phrase to remember is “asymptomatic and fully working.” Document your pre-accident work status as thoroughly as you can: full duty, no restrictions, no recent treatment. If you want to ballpark what an apportionment fight could cost you on a schedule loss case, run the numbers through the SLU Estimator.
Play #5: The Section 114-a Fraud Trap
What it is. Workers’ Compensation Law § 114-a is the nuclear option. If the Board finds that a claimant knowingly made a material misrepresentation for the purpose of obtaining benefits, the claimant forfeits benefits — and in cases involving serious misrepresentation, the forfeiture can be permanent. “Material misrepresentation” is broader than you’d think.
Why it works. People exaggerate. People forget. People say “I can’t lift anything” when they mean “I can’t lift anything heavy.” The defense knows this and builds the case to catch you in the gap between what you said and what surveillance can show.
What it looks like to you. Surveillance video you didn’t know was being recorded. Social media review you didn’t know was happening. A deposition where the defense asks oddly specific questions about your limitations — questions designed to lock in answers they can later contradict with that surveillance footage of you carrying a grocery bag.
The counter. Don’t lie. Don’t round up your symptoms. Don’t round down your capabilities. Be precise. “I have good days and bad days, and on bad days I can’t carry more than a few pounds” is honest, accurate, and § 114-a-resistant. “I can’t lift anything” is none of those things. Assume you’re being watched. You probably are.
Play #6: The Consequential-Injury Carve-Out
What it is. The carrier accepts your right knee. You’ve been limping for four months, putting all your weight on the left leg, and now your left hip hurts. You file for the hip. The carrier denies it as not causally related. You now have one accepted body part producing modest benefits and one denied body part that’s the actual reason you can’t go back to work.
Why it works. Acceptance letters are written narrowly on purpose. The body parts not listed are the body parts you’ll have to fight for separately, often months after the original injury, when the causal chain is harder to prove.
What it looks like to you. An acceptance letter that names specific body parts and nothing else. A denial of a related condition that arrived weeks later. Read carefully: it’s not what they accepted, it’s what they didn’t.
The counter. Get the consequential condition into the medical record fast. Your treating physician needs to document the causal chain explicitly — primary injury, altered mechanics or use, secondary condition. File to amend the claim immediately. If you wait, the carrier will argue intervening cause and you’ll spend a year litigating something that should have been written into the file in the first month. If a body part has already been denied, the Denial Analyzer will help you read the denial code.
Play #7: The Section 32 Lowball
What it is. A Section 32 settlement is a voluntary, lump-sum agreement that closes some or all of your New York workers’ compensation claim. The carrier will offer one when their actuaries have calculated that the present value of settling now is less than what they expect to pay you over the life of the claim. A Section 32 offer is not a gift. It is, by definition, the number that is cheaper for them.
Why it works. A worker who has been on partial benefits for eight months has never seen $75,000 in one place. The number sounds enormous. The pressure to take it is immense. The “limited time offer” framing is deliberate.
What it looks like to you. A call from your attorney, or sometimes directly from the carrier, with a number, urgency, and an implied threat that the offer disappears if you ask too many questions.
The counter. Do the math. A 42-year-old worker with a permanent partial disability has decades of potential lifetime medical exposure on the carrier’s books, and that exposure is often the bigger number than the indemnity piece. Future medical alone — surgeries, injections, physical therapy, durable medical equipment, prescriptions — can outweigh the wage replacement side of the settlement entirely. The Case Evaluator gives you a baseline; the Weekly Rate Calculator shows you what your indemnity stream actually looks like over time. For the full breakdown of what Section 32 settlements actually do and don’t do, start here. Never sign a Section 32 without an attorney who has walked you through exactly what you are giving up — including future medical, which is the line most workers don’t fully understand until it’s too late.
How to use this playbook
You don’t need to memorize the statutes. You need to recognize the moves. When something happens in your case and it doesn’t make sense — the bills are getting paid but the checks aren’t, the IME report doesn’t match the visit you remember, a body part you thought was covered turns out not to be — ask yourself: which play is this? The defense isn’t inventing new tactics for your file. They’re running the same plays they run on every file. Once you know the names, you start seeing the moves before they land.
Save this issue. Bookmark it. Forward it to anyone you know who got hurt at work and is wondering why this process is so much harder than it should be. The single most expensive mistake injured workers make is assuming the system will protect them by default. It won’t. You have to know what’s coming.
If you’re already deep into one of these plays — your claim is denied, your IME just came back ugly, a Section 32 offer landed in your inbox — reach out. I represent injured workers across New York, including Manhattan, Brooklyn, Queens, the Bronx, Staten Island, Long Island, and the lower Hudson Valley. The first consult is free.
For the attorneys reading
Naming the plays is half the battle. The other half is the discipline to push the procedural counter early — the 45-day hearing request under § 25(2)(a), the affirmative submission to force indexing, the pre-accident work-status documentation that defeats apportionment before the IME report ever lands. Clients with vocabulary use those tools more, because they ask for them. Worth the effort.
See you next week.
This page is informational. It is not legal advice and does not create an attorney-client relationship. Every workers' compensation case turns on its facts. For analysis of your matter, contact me directly.